You can’t help but like retired Col. Van T. Barfoot. The 90 year old served with distinction in World War II, Korea and Vietnam. He won some medals, including a Purple Heart. And the Medal of Honor for staring down three Nazi tanks with a bazooka. He’s a patriot, and he comes by it honestly. He’s put his life on the line, and certainly needs no apologies to put up a 21 foot flagpole to fly the flag for which he was prepared to give his life.
This is why the decision by the Sussex (Virginia) Homeowners Association, via Turley, to deny Barfoot’s pole seems so wrong. From the ABC News :
The Sussex Square homeowners’ association says the flagpole violates the neighborhood’s aesthetic guidelines. It originally ordered him to remove it by 5 p.m. Friday or face a lawsuit, but on Thursday it pushed back the deadline until Dec. 11.Housing developments that are run by homeowner’s associations aren’t everyone’s cup of tea, and definitely not mine. When the decision is made to purchase a home within such a development and subject to the association’s often overbearing rules, they do so for a reason. They seek the sort of aesthetic consistency that some people relish; the ability to make sure that the guy next door doesn’t do something that will offend your sensibilities.
The group has said Barfoot can display the flag, as long as it’s in a way that conforms with association rules, such as from a pole mounted on the front of the house.
“This is not about the American flag. This is about a flagpole,” the association said in a statement.
The problem here is that the “guy next door” in this case is Barfoot. The rules of the association are part and parcel of what you buy when you make the decision to give up your freedom so that the other fellow will give up his. As silly as aesthetic choices may seem to some, they are very much a part of the quality of life that some people desire, and after the deal is cut, the agreement to forego the bundle of freedoms that we might otherwise possess, to enjoy that additional freedom of living without some crazy guy next door painting his house purple and keeping junk cars in the driveway, we live with it.
It’s not as if they came up with the rule just to hassle poor Barfoot. The rule were there before he put up his flagpole. It was one of the rules that he agreed to abide when he decided to live within the rules of the homeowners association. It wasn’t a personal attack or affront. It’s just a rule, like the ones that requires people to mow their lawn or paint their home in a pre-selected color. That’s what makes these communities desirable for people who have had enough of other people’s individual choices and prefer to live in a neighborhood whose appearance will meet their approval for as long as they live there. If that’s what they like, what’s wrong with that?
It’s not that I don’t feel badly for Barfoot. The man has every sympathy-evoking factor on the planet. Who can say “no” to a 90 year old vet who was willing to give his life for others? But then, the rules don’t prohibit him from receiving medical care, or even flying the flag itself. It’s just about tall flagpoles. While the absence of a flag won’t kill him (and hasn’t up to now), there is no rule that prevents him from hanging a flag from a pole mounted on his house.
The comments at Turley’s blog struck me as very telling, and gave rise to my posting about this. Many commenters took the position that Barfoot had earned the right to do as he pleased, or that it was his property and no one could tell him what to do. To the extent that one can discern an opinion from Turley’s post itself, this appears to reflect his thinking as well. While it’s understandable that Turley and his readers strongly believe in individual rights, and similarly see the homeowner association’s rules as ridiculous, they completely miss the point.
Col. Barfoot made the decision to purchase a home within, and subject to the rules of, the Sussex Homeowners Association. He knew that he would be subject to the aesthetic limitations of the rules, and he know that his neighbors would be as well. He decided to purchase his home anyway. He enjoys the benefit of his neighbors maintaining the consistency of appearance of the neighborhood that characterizes these associations. It enhances the quality of his life by providing him with a neighborhood atmosphere that meets his expectations.
It’s a compact between neighbors for their mutual benefit. That it’s not how you would like to live is irrelevant. No one will force you to move into the neighborhood. You do so by choice. You do so knowingly. The people who purchase homes subject to these rules desire these rules and desire the homogeneous appearance that characterize these neighborhood. The entire concept falls apart the minute one homeowner asserts his individual right to do something that violates the rules. He ruins it for everyone.
That said, it would appear that the homeowners association is trying to do the right thing by seeking to mediate the dispute. Perhaps the entire neighborhood will agree to let Barfoot have his flagpole, the rules notwithstanding. Perhaps a smaller flagpole will be acceptable. They don’t appear to be in “zero tolerance” mode, but rather trying to find some middle ground. This is about as reasonable as it gets.
The message isn’t that individual rights are dead, but that we are constrained by our own voluntary choices. When a group of people choose to relinquish certain rights for the benefit of all, it’s unfair to expect that it applies to everyone but you. I salute Col. Van T. Barfoot for his contributions to our nation, and I hope that they are able to work something out that everyone can live with, but he has no right to ignore the rules that he enjoys when applied to his neighbors.
Before I was a First Amendment / Entertainment lawyer, I was a condo lawyer.
This kind of silliness happened all the time. You’re absolutely right in this post, Scott. When you buy in a deed restricted community, you buy subject to their existing (and amendable) rules.
When I lived in Florida, I bought in an HOA because I WANTED a little bit of fascism in my life. Yes, really. If you ever lived in the South, you would too — because in the absence of HOA rules, you wind up with pickup trucks on blocks on the lawn, the roof painted with a confederate flag, and sixteen dogs tied to one tree in the yard.
Hey brother Marc. Glad that you stopped by. Congratulations on the recognition of your Satyriconistas by the “Legal Rebels.” I hope the kitten survives. I would vote for you but they require registration this time around, and I have no plans on registering with them to play this worthless game. I can’t imagine why anyone would bother.
Thanks for some real life insight into the HOA rules. People keep forgetting that it’s not just their rights, but the other guy’s, in issue.
Well, yeah. A court can solve the legal question, easily. There’s a deal, it doesn’t allow for the flagpole, end of discussion.
But given the thing he wanted to do, and that he is, after all, a Medal of Honor winner, it seems to me that cutting the guy a little slack on this — even if it meant changing the terms of the agreement — would have been the right decision by the folks who have the right to make it: the association. From this remove, it looks that’s what they’re trying to work toward, and where this is headed, which sounds about right.
Has anyone ever bothered to raise this issue based on Shelley v. Kraemer? It seems like a First Amendment issue and a property right issue to me, with state courts enforcing the denial of the rights.
Disclosure: I think HOA board members should be subject to public burnings. Or maybe crucifixion.
It’s neither First Amendment nor property rights. He can fly the flag to his heart’s content, just not on a big freestanding flagpole. And he’s signed away his property rights to keep the neighbor from putting up a flagpole with the confederate flag. No issues at all.
You can hate HOA board members all you want. So don’t move into one. No problem. But they exist for those who want that lifestyle, and that’s their choice.
I first came across this story via Digg.com (not exactly a haven for juridical thought) and the general consensus there is that the Freedom to Display the American Flag Act was a magic bullet for him. I don’t think that sounds right at all — the logic would follow that you would be able to build any structure, anywhere and to any standard as long as you then tied a flag to it.
I don’t like the idea that having a medal gives you immunity from agreements and laws — it seems if you were to think of anyone who would abide by the law it’d be someone who fought for them.
The problem for me there is the underlying question of if you actually should cut a guy slack because he’s a medal winner (I know this sounds callous). I don’t think the same sympathy would apply if he was trying to avoid his mortgage or tax etc. It’s only because it’s a flagpole with all that entails that it becomes more difficult to say either way.
I agree, and I’ve heard that an analysis of property values shows that, all other things being equal, homes in HOAs are more valuable, suggesting that people like them better.
But…I wonder how you distinguish (in principle, not legally) between a large and powerful HOA and a small town. Both are governed democratically, membership in both is a condition of ownership, and you can escape from either one by moving away. Is there a point where an HOA becomes a town in disguise, but with less respect for individual rights?
Racially restrictive covenants existed for those who wanted the lifestyle, too. I really don’t see a lot of difference except for the subject matter of the restrictions.
Well, how about “keeping people out of a community because they’re black” is bad, and “keeping a lot of wrecked cars off of front lawns” isn’t?
It’s the emotional, versus rational, reaction. People for whom we feel sympathetic get a break, without thinking any further. That’s a pretty typical reaction.
You are right about there being some surface similarities, though the law prohibits HOAs from delving into certain areas. They are largely limited to exterior appearance and common area maintenance. But they do levy “taxes” in the form of association dues, and the directors are “elected” by the members.
I find the action of this neighbood association disgraceful and an insult to this vet and all of his comrades. He has more than earned the right to be given an exception to this anti-American ruling. How many of his so-called neighbors have served our country to such a great extent, if at all? If we had more patriots like this man, the country wouldn’t be in such a mess but it seems that pride in your front lawn is more important than pride in your country in this pitiful neighborhood. Shame, shame, shame.
The key difference is that membership in an HOA is voluntary. There is truly an explicit “consent of the governed,” including consent to whatever democratic procedures govern the association. In principle, that wouldn’t change even if an HOA grew to cover the entire State of Virginia. But that would never happen, because not everyone in a geographical area so large would voluntarily agree to become part of such an association.
A related question is to what extent a small town validly considers itself a de facto HOA, with authority to limit the property rights of those who voluntarily choose to live within its borders. That is essentially what towns in fact do, via zoning laws, etc. Can “consent of the governed” be assumed or implied, since it is theoretically easier to move from a small town than it is to move from a state or a country?
What I have in mind is what Albert Jay Nock said about Thomas Jefferson: “The common view of Mr. Jefferson as a doctrinaire believer in the stark principle of ‘states’ rights’ is most incompetent and misleading. He believed in states’ rights, assuredly, but he went much farther; states’ rights were only an incident in his general system of political organization. He believed that the ultimate political unit, the repository and source of political authority and initiative, should be the smallest unit; not the federal unit, state unit or county unit, but the township, or, as he called it, the ‘ward.’ The township, and the township only, should determine the delegation of power upwards to the county, the state, and the federal units.” In Jefferson’s own words: “Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs, not merely at an election one day in the year, but every day;… he will let the heart be torn out of his body sooner than his power wrested from him by a Caesar or a Bonaparte.”
Did someone ask you for further explication?
You win True American Patriot of the day. Thanks for playing.
The types of neighborhoods that feature HOAs typically are upscale enough for that to not be a problem, at least around these parts. Your mileage may vary.
Of course, we’re not talking about wrecked cars in this case, either.
If they did this properly via covenant, there’s no property rights issue – he bought the property subject to the burden of the covenant (he can’t put ugly things on his property), and in fact the benefit of the covenant (same) is a property interest in his neighbors.
The Shelley v. Kraemer thing is more interesting, but I doubt the court would consider the erection of a flagpole to be a free speech issue. Moreover, Shelley did not actually restrict the ability to form certain covenants, it only said that the state couldn’t step in to enforce them (making them worthless, of course). That means he’d actually have to provoke an injunctive lawsuit by the HOA to raise the issue.
Exactly… I mean, sure, if we wanna say that there are a certain class of rules and laws that Congressional Medal of Honor winners need not obey, hell I might vote for that.
If you win the CMO, you can speed on the highways, put your flag on any pole you like, and you can slap one person per day with an open hand.
The fact is, the guy is being a douche because he’s a 90 year old curmudgeon.
Remember property 101. Property is what the state says it is. You buy your home out in the middle of nowhere, that doesn’t mean you have the right to refine uranium on it. You can’t necessarily raise chickens on it, and if you’re in an HOA, you can’t do what the HOA says you can’t do (provided that it is not selectively enforced, and it is in the written rules).
As far as being “honored” by the ABA (an organization that I openly have called to be disbanded) — meh… Turley’s followers are openly laughing about how they are registering multiple email accounts, Turley doesn’t seem to take issue with it, and I’ve told my readers that I wouldn’t tolerate such crap. So, the “honor” will be short lived.
Fucking full time law profs.
I can’t for the life of me understand why this matters so much to Turley, to win this nonsense award that exists only to draw eyeballs to the ABA. But he does. Whatever.